For the American Branch’s third blogging symposium, various authors will address International Law Weekend’s 2025 theme of ‘Crisis as Catalyst in International Law’ from an International Humanitarian Law Perspective. Earlier this year, the American Branch put out a call for abstracts addressing this theme. The International Humanitarian Law Committee Chair Professor Gabor Rona, 2024 Student Ambassador Anne Harper, and ABILA COO Freya Doughty-Wagner selected the best abstracts and worked with the authors as editors. These complete pieces will be published daily, starting Tuesday, August 26th, and concluding on Friday, August 29th.

All published works are solely those of the authors and do not reflect the views of the American Branch.

Symposium Overview:

TUESDAY: The Trump Administration’s War on the Laws of War by Gabor Rona

Gabor Rona is a Professor of Practice at Cardozo Law, Yeshiva University, and a Lecturer in Law at Columbia Law, with expertise in international human rights and international humanitarian law. Before his time at Cardozo, he was the International Legal Director of Human Rights First and a Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva.

Read here.

WEDNESDAY: A Binary in Crisis: Broadening the Functional Approach to the Law of Occupation by Oscar Pearce

Oscar Pearce is an incoming graduate lawyer at Herbert Smith Freehills Kramer, Sydney. He studied at the Australian National University, where he specialized in Public International Law.

Read here.

THURSDAY: Accountability without Access: How Non-Military Actors Can Assess Conduct of Hostilities Violations by Ilya Ivanov

Ilya Ivanov is a PhD Candidate at the University of Geneva, where he researches the legal value of non-binding norms in international humanitarian law and international human rights law. Recently, he served as a Legal Officer at the Office of the United Nations High Commissioner for Human Rights (OHCHR) and has held positions with the International Committee of the Red Cross, the World Food Programme, and the Human Rights House Foundation.

Read here.

FRIDAY: Recalibrating the Proportionality Calculus to Include Mental Collateral Damage by Natasha Arnpriester

Natasha Arnpriester is Senior Legal Counsel at the Open Society Justice Initiative in New York, where she leads transnational litigation on human rights accountability, with a particular focus on communities affected by armed conflict, authoritarian regimes, and structural exclusion. Her litigation strategies center on developing niche and innovative arguments to address complex problems in both domestic and international legal forums, with impacted communities at the core.

Read here.

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The Metalurgia Business Peru metallurgical complex in the city of La Oroya. Source: Human Rights Watch

This piece is part of the American Branch’s second blogging symposium, examining the ILW 2024 theme of ‘Powerless law or law for the powerless?’ from an International Investment Law perspective. This symposium is sponsored by the International Investment Law Committee, but published works are solely those of the authors.

La Oroya – Assessing Human Rights Obligations in an International Investment Law Context

by Dean Kristen Boon and Nickolas Eburne*

Do international courts and tribunals speak with one voice?  The parallel proceedings of the Inter-American Court of Human Rights (IACtHR) in Case of La Oroya Population v. Peru (La Oroya v. Peru) and the ongoing investor-state dispute settlement (ISDS) tribunal hearing The Renco Group v, Inc. v. Republic of Peru, PCA Case No. 2019-46 (Renco v. Peru II) shows they do not.  These cases are a new chapter in the story of fragmentation and shared responsibility.

On March 22, 2024, the IACtHR declared that Peru was internationally responsible for breaching provisions of the Inter-American Convention on Human Rights, namely the right to a healthy environment (Article 26), the right to life (Article 4.1), the right to personal integrity (Article 5), the rights of children (Article 19), and other rights. The facts of the case are related to the La Oroya Metallurgical Complex, which is responsible for the smelting and refining of metals with high levels of lead, copper, zinc and arsenic, among others, in the small community of La Oroya in Peru. Eighty members of the community instituted proceedings against their national government for what they claimed were serious environmental failings in allowing the metallurgical complex to operate, considering its impact on the environment, as it contaminated the air, water, and soil of La Oroya.

Importantly, the Court found that the right to a healthy environmental comprised a bundle of procedural and substantive elements (para 118). The procedural elements included access to information, public participation in decision-making, and access to justice with effective remedies. The substantive elements included clean air, safe and sufficient water, healthy and sustainably produced food, non-toxic environments where people can safely live, work, learn and play, healthy ecosystems and biodiversity, and a safe, livable climate.

An important aspect of the Court’s decision was its emphasis on the principles of prevention and precaution. Pursuant to the principle of prevention, the Court said, “States are obliged to use all means at their disposal in order to prevent activities carried out under their jurisdiction from causing significant damage to the environment […] [t]his obligation must be fulfilled under a standard of due diligence, which must be appropriate and proportional to the degree of risk of environmental damage” (para 126). Indeed, most human rights obligations do not apply directly to corporations but rather are mediated through state obligations. The court discussed corporate responsibility of the mining companies briefly – noting in this case, both the State and the mining company had responsibilities in terms of regulation and supervision of risky activities.  Nonetheless, it stressed their obligations to protect environment and human rights, which the States must supervise, investigate and regulate.

In parallel, in the ongoing Renco v. Peru II investment dispute, Peru is defending itself from claims that it imposed additional environmental obligations on the Renco Group – the Applicant – concerning the management of the metallurgical complex and that it refused to grant reasonable extensions to complete environmental projects at the site. This, according to the Applicant, led to the investor being forced to cease operations at the metallurgical complex, causing it to become bankrupt. More specifically, the Applicant is claiming a violation of the 2006 BIT between Peru and the United States as relates to alleged unfair and inequitable treatment (article 10.5 of the BIT) and the indirect expropriation of the La Oroya complex.

The IACtHR decision and the ISDS dispute create a complex landscape for state responsibility where environmental obligations are concerned. Depending on the outcome of the Renco v. Peru II case, Peru may be put in the precarious position under international law of having both infringed the right to a healthy environment of the people of La Oroya and of having imposed overly stringent environmental requirements on the exploitation of the La Oroya mining complex.

International human rights law has traditionally had no direct horizontal effect; that is to say, it places no direct obligations on investors as private entities or on multinational corporations, despite the fact that corporations are powerful actors, sometimes more so than states. There are only a few direct obligations applicable to corporations generally, despite deep development of state responsibility, and neighboring fields of International Organizations and criminal responsibility, CSR and business and human rights.

The key issue, in this context, lies in the general perception that the objectives of human rights and investment regimes are sometimes seen as being incompatible with the objectives of human rights law.

There are differences, but also important similarities: in both ISDS and human rights individuals can claim rights violations committed by the state, but the converse is not true. Certainly, the purpose of both systems is to protect individuals against state power. Moreover, in the new generation of investment treaties, it has become more common for human rights norms to be incorporated into the treaty itself, as applicable law, or through provisions that require investments conform to domestic law. Therefore, although there is an instinct to treat them as autonomous areas of law, they also interact.

There have tended to be five different general “categories” of investment disputes where human rights concerns can appear: cases where (i) the investor claims human rights abuse, (ii) the investor’s actions violate the human rights of the host state population, (iii) the host state alleges that the investor has human rights responsibilities, (iv) the host state amends its legislation to better comply with human rights obligations, and (v) where the host state invokes human rights to seek exceptions from investment protection provisions.

Cases where the investor claims human rights abuse are the rarest. This consists of investors – being individuals – claiming that the host state has violated their human rights. This occurred in Bozbey (where the investor was tortured) and Tulip (investor denied due process). In another case, Biloune and Marine Drive Complex Ltd. v. Ghana (Biloune v. Ghana), the claimant alleged that it had been subjected to denial of justice, and arbitrary detention and deportation. Yet, the tribunal found that it did not have jurisdiction over these claims. Some other tribunals, however, have integrated human rights reasoning into their awards (Micula v. Romania, Al Warraq v. Indonesia).

Source: Liliana Ávila/AIDA

The second category of cases, where the investor’s actions violate the human rights of the host state population, can occur in the context where security measures are taken to protect installations or where employment issues cause forced labor, or in the case of defective performance of water supply contracts for example. In some cases , states have been found responsible as co-perpetrators or for failing to prevent violations of international law. In others, investors have been denied the right to bring claims because of the “clean hands” doctrine under international law, which, creates admissibility issues.   Sometimes, human rights – such as the right to water – have been found to be part of the framework for a claimant’s legitimate expectations  under international investment law.   As a result, emergency measures did not constitute a violation of substantive treaty provisions.

Host states have also, in some disputes, alleged that an investor had HR obligations to abide by. This in the third “category” of investment disputes where human rights concerns can appear; In the Urbaser case, for example, Argentina made the argument in its $190 million counterclaim under a Spanish – Argentinian BIT against the investor that the latter had HR obligations to uphold. Indeed, Argentina claimed that the investors had violated the right of its population to access water; even though the counterclaim failed, this case remains landmark in terms of allowing human rights considerations in a host state’s counterclaim against private investors.

In the fourth category, some host states have taken measures to better comply with their human rights obligations (i.e. legislation or administrative acts related to social security, improvement of water resource protection, and affirmative action). This was the case in Piero Foresti, Laura de Carli and others v. Republic of South Africa (Foresti v South Africa) (ICSID Case No. ARB(AF)/07/1), for example, where the host nation invoked human rights by reference to the UN Convention against racial discrimination to defend its affirmative action policy. It is significant that the new generation of investment treaties carve out regulatory space for states, particularly on issues of public policy such as health and the environment and refer directly to corporate social responsibility (CSR) in preambles and operative parts of treaty.

Finally, the host state can invoke human rights to derogate from investment protection provisions as well. human rights, at its core, involve a balancing test; and in certain cases (i.e. national security), states may need to derogate from a particular treaty obligation. In both the CMS Gas Transmission Company v. Argentina (2005) and Suez, Sociedad General de Aguas de Barcelona S.A. v. Argentina (2010) cases, Argentina invoked human rights and necessity in its defense during the severe economic and social crisis that occurred in the country in the early 2000s. Argentina argued that the crisis, which led to widespread poverty, unemployment, and social unrest, justified its measures, including the freezing of utility tariffs and other regulatory actions that negatively affected foreign investors. Argentina stated that stopping the wide-spread economic and social crisis through its measures essentially protected human rights, and that the investment treaty should not prevail in this conflict of norms.  The host state also made a plea of necessity under the Articles on State Responsibility (ASR).  However, the tribunal found the defenses were not justified in those cases.

This mapping exercise, delineating between five categories of cases wherein questions of human rights obligations are raised, can help contextualize what we believe is a broader move towards investor responsibility both in human rights and in international investment law. This argument is supported by the increasing human rights substantive standards found in investment treaties, and by domestic law obligations for foreign investors to adhere by domestic law human rights standards. Certain procedural obligations, such as the disclosure obligations on funding, or transparency obligations, also indicate a broader move toward an arena where investors need to be more responsible in the way in which they conduct their activities. Some investment treaties even reference human rights, such as the Nigeria – Morocco BIT (signed but not in force) at Articles 15 and 18 and the 2019 Netherlands Model BIT  which includes references to due diligence, expectations that tribunals consider non-compliance with Business & Human Rights / CSR standards into account, and gender/social risk analysis. Furthermore, the UNCITRAL Working Group III has engaged with human rights issues, such as third-party representation, which could allow Indigenous communities whose human rights have allegedly been violated by investors to make counter claims and claim damages of their own. Finally, we have also seen a hardening of human rights and CSR related language in investment treaties from the soft formulations of earlier days. For example, the African Continental Free Trade Area (AfCFTA) Protocol on Investment, adopted in 2023, contains environmental, social, and governance (ESG) and CSR standards, in addition to language promoting gender equality and inclusion.

As the Oroya dispute unfolds, there will be much to discuss with regards to state responsibility. Its outcome will shape the continuation of this debate in coming years: will the tribunal cement the argument that there is a broader move towards investor responsibility in the world of international investment law, or will it instead reopen the debate on this issue? And where might Peru find itself at the dispute’s conclusion?

Even following the award in the Renco v Peru II dispute, the status of human rights in international investment law will remain contested. However, perhaps this award will help frame the discourse around the interaction of human rights and international investment law, and this might in turn reach the ears of prospective foreign investors.

*Kristen Boon is the inaugural Susan & Perry Dellelce Dean of Common Law at the University of Ottawa. Dean Boon is a specialist in international law and contracts. She has a particular interest in treaty interpretation, international responsibility, sanctions, and immunities. Dean Boon is an expert on investor/state dispute resolution. Dean Boon is the proud Editor in Chief of the Canadian Yearbook of International Law. She is also a former member of the Executive Council of the American Society of International Law and a current member of the Institute for Transnational Arbitration’s Academic Council.

Nickolas Eburne is a Staff Officer/Legal Advisor to the NATO Allied Comand Transformation. His previous roles include Legal Counsel with the Canadian House of Commons and Junior Trade Policy Officer with Global Affairs Canada. Eburne is the Co-Chair of the American Society of International Law’s Anti-Corruption Law Interest Group and is a 2024 recipient of ASIL’s Arthur C. Helton Fellowship. He holds his JD and LLM in International Trade and Foreign Investment from the University of Ottawa.

The opinions shared in this publication are the authors’ own, and do not reflect those of their employers.

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To participate, kindly submit a 200-word abstract and a brief biography to Freya Doughty-Wagner at media@ila-americanbranch.org by December 5, 2024. Abstracts and biographies may be in Word or PDF format. Please include the phrase ‘blog symposium’ in the email’s subject line. Abstracts must address the ILW 2024 theme from an international investment law perspective. For inspiration, please see an ILW24 international investment law panel description below.

International Investment and Human Rights: How Does International Law Control Environmental Impact on Local Communities?

Large-scale industrial projects are economically important but can have pernicious effects on surrounding communities. The Inter-American Court of Human Rights, in the recent landmark decision of La Oroya v. Peru, held Peru to be internationally responsible for its failure to protect the people of La Oroya from pollution generated by a century-old metal smelter complex. At the same time, the foreign owner of the complex continues to seek damages before an investor-State arbitral tribunal in Renco v. Peru for Peru’s failure to afford adequate flexibility in meeting pollution control regulations. Based on this fascinating case study, the panel will assess what contributions international human rights and investment law can and should make to controlling the impact of such projects.

Additionally, please find two examples of blogs from ABILA’s first symposium here and here.

Successful applicants will be notified by December 12, 2024 and requested to prepare a 1,500-word piece with hyperlinks as references and an attached open-access image by January 20, 2025. All blogs may undergo editing, subject to author approval, before publication.

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July 17, 2023, marked the 25th anniversary of the Rome Statute, the foundational treaty of the International Criminal Court (ICC), a Court of last resort for the gravest crimes. The situation in Ukraine has underscored the need for cooperation to bring perpetrators of atrocity crimes to justice and the recent announcement of U.S. cooperation in the ICC investigation in Ukraine is a welcome development. However, more can be done to support the ICC’s vitally important work and combat impunity worldwide. This milestone provides an opportunity to reset the U.S. relationship with the ICC and reaffirm the United States’ commitment to the rule of law and accountability.

Read the full report here: https://www.ila-americanbranch.org/wp-content/uploads/2023/08/ICC-Committee-Statement-Aug.2023.pdf

Learn more about the ICC Committee here: https://www.ila-americanbranch.org/committees/international-criminal-court/

The post ICC Committee Report: Five Recommendations for Resetting the U.S./ICC Relationship appeared first on ABILA.

The American Branch is excited to introduce Luis Fortuño as the new Chair of the ABILA Arms Control and Disarmament Committee and sends our sincere thanks to Chris Borgen for his years of service as the former Chair.

Luis Fortuño is a Partner at Steptoe & Johnson LLP. His areas of work include corporate, government affairs and public policy, infrastructure and project finance, and qualified opportunity zones. He represents investment funds and Fortune 500 companies in regulatory, public policy, public-private partnership (P3) and project finance, finance, and other corporate matters in the US and throughout Latin America.

Previously, Fortuño served as the Former Governor of Puerto Rico from 2009 to 2013 and in the US House of Representatives from 2005 to 2008. During the 109^th Congress, he was the vice-president of the House Republican freshman class and vice-chair of the Congressional Hispanic Conference. He then served as chair of the Congressional Hispanic Conference and co-chair of the Congressional Friends of Spain during the 110^th Congress. In 2007, Fortuño was appointed at the Republican minority’s ranking member on the Natural Resource Committee’s Subcommittee on Indian, Insular and Alaska Native Affairs. He also served on a number of committees, including those on House Transportation and Infrastructure, International Relations, and Education and the Workforce.

In 2009, King Juan Carlos I of Spain awarded him with the Order of Isabel la Catolica, which recognizes Spanish citizens and others who have improved relations between Spain and the international community through friendship and cooperation.

Fortuño has a B.S. in Foreign Service from Georgetown University and a J.D. from the University of Virginia. He is admitted to practice law in the District of Columbia, Puerto Rico, and US Court of Appeals, First Circuit.

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The American Branch’s Arms Control and Disarmament Committee examines the nuclear weapon policies and practices of nuclear weapon states and their impact on the development of international law regarding arms control and disarmament of nuclear weapons. The Committee aims to address whether and how an international law norm is emerging on a general prohibition of the use of nuclear weapons as well as on disarmament of nuclear weapons.

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We look forward to seeing the Arms Control and Disarmament Committee continue to flourish with Fortuño as Chair!

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The 2022 International Law Weekend, held in New York last year, featured panel discussions with many of the world’s leading international lawyers, academics and diplomats. Discussion ranged from space-related disputes to the continued influence of the Vienna Convention on investor-state arbitration; the use of coercive diplomacy in the skies; the immunity of international organisations in the US; the development of private international law on jurisdiction and enforcement; and internet governance.

Here are key takeaways, identified by the co-chairs of the ABILA international arbitration committee and other lawyers. 

Article continued on Global Arbitration Review here.

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Committee Mandate: The major focus of the Arms Control and Disarmament Committee is to examine the nuclear weapon policies and practices of the nuclear weapon states and their impact on the development of international law regarding arms control and disarmament of nuclear weapons. In this context, the Committee plans to address the question of whether and how an international law norm is emerging on a general prohibition of the use of nuclear weapons, as well as on disarmament of nuclear weapons. In particular, the Committee is interested in U.S. policy and practice.

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When international crises occur, law school community members are impacted emotionally and often want to use their training and skills to respond in positive and constructive ways. Some topics and crises may overwhelm or trigger students. Some crises may require an immediate response; others require longer-term attention. This program was designed to explore these issues and suggest beneficial ways law school communities can assist persons most affected by these crises. The discussion leaders began the conversation and invited audience participation to share innovative ideas and best practices for how law school communities can constructively respond to international crises.

The session was moderated by Cindy G Buys (Southern Illinois University School of Law). Three ABILA members spoke on the panel: Zachary D. Kaufman (University of Houston Law Center), Charlotte Ku (Texas A&M University School of Law), and Milena Sterio (Cleveland State University College of Law).

The Committee on Teaching International Law: (1) supports professors who are teaching international law; (2) supports the development of books and materials to help students learn international law; (3) encourages the introduction of international law topics in other law classes; (4) encourages individuals who are seeking to become professors of international law; and (5) encourages scholarship and professional development in the field of international law.

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The International scholarly community lost a shining star with the recent, untimely passing of Professor Megan Fairlie, who, among many other accomplishments, served as co-chair of the International Criminal Court Committee of the American Branch of the International Law Association.

Megan was a Professor of Law at Florida International University College of Law where she specialized in Criminal Law, Criminal Procedure & Litigation, International Human Rights, International Law, and Professional Responsibility.

She was a prolific scholar, having authored scores of law review articles and book chapters. Her main research was in the area of international criminal procedure, particularly questions arising in proceedings before the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court (“ICC”). See her full CV here.

Megan received her PhD in International Human Rights Law from the National University of Ireland (Galway), where she studied with Professor William A. Schabas, who later became a treasured friend. In recent years, Megan returned to teach at the Irish Center for Human Rights in their renowned summer program. Megan’s LL.M. was from the same University, with her J.D. from Washington and Lee University. She received her B.A. (summa cum laude) from the State University of New York at Albany where she was inducted into Phi Beta Kappa.

Having commenced her law career as an Assistant District Attorney in North Carolina, she later served as Counsel in both houses of the New York State Legislature in Albany, New York. She also served as a Visiting Professor at Albany Law School, and a Lecturer in Law at the University of Ulster, Belfast, where she was part of the Transitional Justice Institute.

Megan cared deeply about the ICC and the US relationship with the Court. She authored or co-authored numerous posts on the ICC, including on Opinio Juris. For another post, see also here. Megan wrote with precision and eloquence and a deep-seated commitment to the rule of law and accountability, as well as a steadfast opposition to exceptionalism.

Beyond her scholarship and technical expertise, Megan will be remembered for her zest for life, her dry and clever wit, and being a devoted mother to her two young daughters. She was extraordinarily principled in her views, and a joyful person who enriched the lives of those who were fortunate enough to spend time with her. Even in illness, she retained a remarkable sense of humor and optimism.

Megan succumbed, after a long battle with cancer, on December 27, 2022.

This post is written to celebrate the accomplishments of a remarkable person and trusted colleague who will be dearly missed.

The post Honoring the Life of Megan Fairlie appeared first on ABILA.

This year, sixteen ABILA committees organized panels at International Law Weekend 2022 – the premier international law event of the fall season, and the Branch’s annual conference in New York City. Several committees also held networking events to connect with their members and discuss ongoing projects.

The Committee on the Formation of Rules of Customary International Law sponsored a panel at ILW 2022 on The Role of Customary International Law in the Next 100 Years. The panel critically examined what role customary international law can and should play in the next 100 years in light of an expanding universe of sources of law, with a particular focus on the fields of international law of armed conflict, international human rights law, and international space and cyber law. The panel was moderated by Committee Chair Brian Lepard and included Rossana Deplano, Oona Hathaway, Ezequiel Heffes, and Nathalie Weizmann. The Committee also held a networking event after the panel. In the coming year, the Committee plans to continue work on a study of the status of international human rights law as customary international law. Lepard is working on a prospectus for the study.

The Committee on International Environmental and Energy Law (chaired by Myanna Dellinger and Carolina Arlota) worked on different fronts and actively participated in ILW 2022. It sponsored a panel discussing the crucial role of science in informing the need for meaningful reduction of greenhouse gases and collaborative action among all countries against climate change. The panel, Beyond Rocket Science: Assessing the Role of Natural and Social Sciences in Galvanizing International Climate Action, featured Carolina Arlota, Myanna Dellinger, Freddy Sourgens, and Gudny Nielsen. Tibisay Morgandi joined the panel as a young scholar. The Committee also co-hosted a networking room with the Law of the Sea Committee.

The Committee on International Arbitration (chaired by Floriane Lavaud and Daniel Reich) and the Committee on International Investment Law (chaired by David Attanasio and Diora Ziyaeva) jointly led an effort to publicize ILW among the community of international arbitration and investment law practitioners, including arranging for ILW conference reporting for OGEMID. The Committees also published an article reviewing the panels from ILW 2021 that touched on the Committees’ subject matter. Building on that, the Committees had a number of panels at ILW 2022, either sponsored directly or within the general ambit of their mandates, including: Coercive Diplomacy in the Skies: Dispute Resolution Mechanisms and Legal Remedies for States; Accountability in Internet Governance; The Vienna Convention on the Law of Treaties in Investor-State Disputes: History, Evolution, and Future; and Controlling Misimplementation and Misuse of Global Anti-Money Laundering Standards. The Committees plan to organize further conferences aimed at drawing together practitioners and academics to discuss cutting-edge issues in international investment law and international arbitration.

The Committee on the International Criminal Court (chaired by Jennifer Trahan) sponsored the panel Prosecuting Sexual and Gender-Based Crimes at the ICC: An Expert Roundtable featuring Yvonne Dutton, Julie Fraser, Valerie Oosterveld, Priya Pillai, and Milena Sterio. This panel discussed the ICC Office of the Prosecutor’s proposed Gender Persecution Policy. At present, the jurisprudence on gender-based persecution is relatively undeveloped in international criminal law. The OTP’s commitment to implementing a Gender Persecution Policy, however, would allow the ICC to take a leadership role in ending impunity for the perpetrators of gender-based persecution. A broadly formulated and inclusive Gender Persecution Policy could do much to aid in protecting marginalized and oppressed groups who are the victims of this crime. The panelists discussed the importance of taking a broad and inclusive view of the meaning of “gender”; recognizing the guidance that others areas of law, such as refugee law, may provide in determining the range of acts that constitute gender-based persecution; developing a robust victim participation scheme at every stage of a gender persecution prosecution; and ensuring that intersectionality and defense arguments of cultural relativism are properly considered in the prosecution of gender-based persecution.

The Use of Force Committee (chaired by Jack Beard) co-sponsored an ILW 2022 panel on Prosecuting the Crime of Aggression: Russia and Beyond?, moderated by ICC Committee Co-Chair Jennifer Trahan. In light of Russia’s violation of the U.N. Charter, the panel considered the possibilities for prosecuting Russian military and civilian leaders for the crime of aggression. Specific models were discussed, including the creation of an ad hoc tribunal agreed upon between the U.N. and Ukraine, and recommended by the General Assembly. The panel also considered the limited jurisdictional regime that presently exists for the International Criminal Court’s investigation and prosecution of the crime of aggression, and potential ways in which that jurisdiction could be expanded in the future. It will also consider the geopolitical risks to the international system of failing to pursue individual criminal responsibility for the crime, which enforces the core foundation non-aggression provision in Article 2(4) of the U.N. Charter. Other speakers included Jack Beard, David Donat Cattin, Astrid Reisinger Coracini, Ambassador David Scheffer, and Ambassador Christian Wenaweser.

The Committee on International Law in Domestic Courts (chaired by Martin Flaherty and Steven M. Schneebaum) sponsored a panel at ILW 2022 entitled Is U.S. Ratification of Human Rights Treaties Obsolete, moderated by Jamil Dakwar. This year marks the 30th anniversary of the U.S. ratification of the International Covenant on Civil and Political Rights (ICCPR). What has been the impact of this ratification on U.S. domestic and foreign policy? What are the lessons learned from the ICCPR ratification and lack of domestic implementation? The panel assessed the U.S. record (both domestically and internationally) as a State Party to the ICCPR and examined the prospects for new treaty ratification without or with limited Reservations, Understandings and Declarations (RUDs) as well as other possible avenues for domestic implementation and enforcement of the ICCPR and other ratified treaties including in domestic courts. Speakers included Martha Davis, David Kaye, Gay McDougall, and Mariana Olaizola Rosenblat.

The Committee on the Law of the Sea sponsored an ILW 2022 panel entitled “Whose is the Bed of the Sea?” 1922-2022 and Beyond, which addressed the past, present, and future of ownership over, benefits from, and control of, the seabed and subsoil of the continental shelf and deep seabed. Sir Cecil Hurst asked this question in 1923, examining the legal basis of claims to nearshore, shallowwater, sedentary living marine resources (e.g., pearl oysters), one of the only commercially interesting “fructus of the soil” (Hurst’s words) of the seabed at that time. Much has changed in the ensuing century: technological advances have permitted exploitation of new resources, including deep water hydrocarbons and thermophilic organisms, and international rules have emerged and evolved, such as the regimes of the continental shelf and deep seabed. But still, Hurst’s question reverberates: continental shelf outer limits remain undelineated, marine genetic resources in areas beyond national jurisdiction are unregulated, Article 82 payments and contributions have yet to be tested, and the rules for equitable sharing of benefits derived from deep seabed mining are still in formation. Participants included Seline Trevisanut, Cymie Payne, and Kevin Baumert. Committee Chair Coalter Lathrop moderated. The Committee also co-hosted a lively networking session with the Committee on International Environmental and Energy Law.

The Committee on International Human Rights (chaired by Aaron X. Fellmeth and Warren Binford) sponsored the panel Growing Threats to the Human Rights of U.S. Transgender & Intersex Children, moderated by Professor Binford. The 21st century has brought greater understanding that gender non-conformity is relatively common. Research indicates that transgender children experience similar gender development profiles to cisgender children and have similar rates of depression and self-esteem if their gender identity is affirmed. If their identities are not affirmed, the risk of suicide and depression significantly increases. Society has responded by normalizing affirmation of transgender identities, including the development of health care protocols, but some politicians have reacted by introducing, and in some cases, banning, gender-affirming health care, and excluding transgender children from sports, bathrooms, and more. Parents and medical providers are currently being investigated for child abuse because they provided gender-affirming care to their children and/or patients. This panel explored whether international human rights law provides a framework to defend the rights of transgender and intersex children in the domestic context of U.S. state legislation targeting transgender and intersex youth.

The Committee on the Legitimacy and Fundamental Principles of International Law (chaired by Mortimer Sellers) continued its effort to strengthen the value and legitimacy of international law by identifying the fundamental principles that support and justify the international legal order, making practitioners more aware of their content, and identifying and promoting the justice of international legal institutions. Its ILW 2022 panel focused on International Human Rights Law, in cooperation with the International Human Rights Committee.  The respect for and protection of universal human rights has long been seen as one of the primary tests and measures of the legitimacy of law and government everywhere. Already in the time of Grotius and Vattel, but with increasing sophistication and frequency since the Second World War, lawyers have cited universal rights and international legal standards to challenge oppressive Empires and States. Yet at the same time, strong traditions of realism and positivism in international relations have threatened the legal status of individual rights, to elevate the power and sovereignty of States at the expense of their subjects. This panel considered the legitimacy and fundamental principles of international human rights law, the sources and evidence of human rights, their binding power, and the possible role human rights protections play in supporting the legitimacy of international law and international legal institutions as a whole. Speakers included Diane Marie Amann, Floria Y.A. Ayeee, Hélène Ruiz Fabri, and Aaron X. Fellmeth.

The Committee on International Humanitarian Law (chaired by Gabor Rona and Ashika Singh) held a networking room during ILW 2022, and sponsored the panel The Cybercrime-Cyberwar Continuum: State Responsibility and Accountability for Cyberattacks under International Law. The panel brought together experts and practitioners from the fields of cyber and humanitarian law to examine critical legal questions that arise when different actors carry out cross-border cyber operations for different purposes—from financially motivated “cybercrime” to hybrid, cyber-kinetic “warfare.” With attention to real-world case studies, the panel considered the factors that might bring a cyberattack within the scope of international humanitarian law and explored unanswered questions of State responsibility and accountability for different types of cyber operations, including those carried out by “private” actors.

The Committee on International Trade Law (chaired by Richard Steinberg) organized a panel on The International Trade Regime’s Foundations in an Era of Increased Geopolitical Conflict at ILW 2022. The panel surveyed developments in international trade law associated with recent and ongoing geopolitical shifts, including Russia’s invasion of Ukraine and China’s revisionist rhetoric and behavior, offering a range of views on present and future trade policy and implications for the global architecture of trade. Kathleen Claussen, Sergio Puig, Kelly Ann Shaw, and Richard H. Steinberg participated as speakers, while the panel was moderated by Matthew Schaefer.

The Committee on United Nations Law (chaired by Christiane Ahlborn and Bart Smit) sponsored an ILW 2022 panel on Negotiating the Sustainable Future of Marine Biological Diversity in Areas Beyond National Jurisdiction.  This panel explored the issues at stake, positions, and challenges in the negotiations to conclude a treaty on marine biodiversity in the high seas and international seabed area beyond national jurisdiction. Moderated by Daniel Stewart, speakers included Florian Jean Patrice Botto, Yolannie Cerrato, Ambassador Osman Keh Kamara,  Ambassador Michael Imran Kanu, and Clement Yow Mulalap.

The Committee on Islamic Law and Society (chaired by Sahar Aziz) held a well-attended networking room during ILW 2022.

The Space Law Committee (chaired by Henry R. Hertzfeld and Matthew Schaefer) co-sponsored a panel at ILW 2022 along with the Committee on International Trade Law (chaired by Richard H. Steinberg). The panel—The International Trade Regime’s Foundations in an Era of Increased Geopolitical Conflict—looked at the impact of geopolitical conflict on supply chains in aerospace and transport industries and continued the Committee’s tradition of cooperation with other ABILA committees. Which foundations of international trade law should remain and which should be reimagined? In recent years, geopolitical tensions have increased and trade relations between many States have become strained. What could or should trade architecture look like? To what extent can there be a stable, global trade regime in the context of competition, territorial disputes, or war among proxies of
powerful States? Should there be a global trade regime? Should there be a trade regime open only to countries that meet specified economic or political criteria? What impact do such choices have on trade in high-value transport, auto, and aerospace products and supply chains? What should be the guiding principles of the various regimes and relationships among them? This panel explored these questions and more with experts including Matthew Schaefer (moderator), Kathleen Claussen, Mario R. Osorio Hernandez, Sergio Puig, Kelly Ann Shaw, and Richard H. Steinberg.

(The names of ABILA members are bolded). 

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